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5 F3d 538 National Bank of Alaska Na v. R Parker J

NATIONAL BANK OF ALASKA, N.A. Appellant,
v.
Donald R. PARKER, and Doris J. Parker, Appellees.

No. 92-35524.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 5, 1993.*
Decided Aug. 16, 1993.

5 F.3d 538
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, District Judge, Presiding.

D.Alaska.

REVERSED AND REMANDED.

Before: SCHROEDER, FLETCHER, and ALARCON, Circuit Judges.

MEMORANDUM**

This case involves the status of a mortgage on a principal residence when the owner files for Chapter 13 bankruptcy, and the market value of the residence is less than the amount remaining on the mortgage. The question presented is whether the mortgagee's claim may be bifurcated into a secured claim for the amount representing the market value of the property, and an unsecured claim for the amount representing the difference between the market value and the remainder of the mortgage. The district court, relying on Ninth Circuit precedent, affirmed the bankruptcy court's bifurcation in this manner. See Lomas Mortg. USA v. Wiese, 980 F.2d 1279 (9th Cir.1992). Lomas, however, has since been overruled by the Supreme Court's decision in Nobelman v. American Savings Bank, 61 U.S.L.W. 4531 (U.S. June 1, 1993) (No. 92-641). Nobelman held that bifurcation in these circumstances would result in a modification of security rights prohibited by Sec. 1322(b)(2). Accordingly, this case is reversed and remanded for reconsideration ofthe plan in light of Nobelman.

REVERSED AND REMANDED.

*

The panel finds this case approriate for submission without argument pursuant to Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3